UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Scott Chandler

v. Civil No. 19-cv-36-PB Opinion No.

Chartwell Holdings, Inc., et al.

ORDER

Invoking state and federal statutory, constitutional and

common law, pro se plaintiff Scott Chandler has sued the owners

and management of the apartment complex where he lives (“the

Fairways defendants”), and his neighbors, alleging mistreatment

and deficient living conditions. Chandler has also sued the

Derry, New Hampshire, Police Department (“DPD”), DPD Officer

Kidd (whose first name is unknown (“FNU”)), and its police

prosecutor, Scott Jordan (“the Derry defendants”), for their

respective roles in eviction proceedings, in responding to

Chandler’s complaints about his living conditions, and in

arresting him. Plaintiffs’ complaint (Doc. No. 1) is before the

court for preliminary review, pursuant to

(e)(2). Also before the court are plaintiff’s motion to

appoint a special prosecutor (Doc. No. 9), plaintiff’s motion

for leave to amend his complaint and an addendum thereto (Doc.

Nos. 12 and 19), his petition for writ of mandamus (Doc. No.

13), and two ex-parte petitions for injunctive relief (Doc. Nos.

16 and 17). The court also has before it the Fairways defendants’ motion to dismiss (Doc. No. 6) and plaintiff’s

motion for leave to file a late objection to that motion (Doc.

No. 7).

I. Preliminary Review

A. Standard

The court conducts a preliminary review of complaints, like

the plaintiff’s, which are filed in forma pauperis. See

(e)(2)(B). The court may dismiss one or more

claims if, among other things, the court lacks jurisdiction, a

defendant is immune from the relief sought, or the complaint

fails to state a claim upon which relief may be granted.

In conducting its preliminary review, the court construes pro se

complaints liberally. See Erickson v. Pardus,

(2007) (per curiam). The complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to relief.’”

Ashcroft v. Iqbal,

(2009) (citation omitted).

B. Background

The plaintiff alleges that he is disabled and lives at The

Fairways Apartments in Derry, New Hampshire, pursuant to a

voucher program available to individuals receiving disability

payments. Although his twenty-one count complaint is

disjointed, lacks a clear narrative and is often repetitive, the

gist of his lawsuit is that he has been harassed by other

2 tenants, treated poorly by his landlord, and either ignored or

harassed by the DPD.

II. Analysis

A. Claims against the Derry Defendants

Liberally construed, the complaint appears to assert a

Fourth Amendment claim of false arrest and a Fourteenth

Amendment due process claim against the DPD, the DPD prosecutor

Jordan and DPD Officer Kidd under

. That

statute, “provides a cause of action for state deprivations of

federal rights.” Nieves v. Bartlett,

(2019).

1. Fourth Amendment False Arrest Claims

Plaintiff alleges that on October 24, 2018, DPD officers

arrested and jailed him for listening to the radio in a vehicle

he had rented. Complaint (Doc. No. 1) at 15. He also alleges

that DPD officers again arrested him on October 27, 2018 and

charged him with “OUI” (presumably operating a motor vehicle

under the influence).

Plaintiff implies that the second

arrest was a form of harassment, perhaps by DPD Officer Kidd,

connected to plaintiff’s unsuccessful attempt to obtain a

restraining order against one of plaintiff’s neighbors.

Most recently, plaintiff alleges that he was arrested in January

2019 in response to a noise complaint. Id. at 16.

3 The seizure of a person without probable cause may be

cognizable as a false arrest that violates the Fourth Amendment.

In general, “[a]n arrest is lawful if the police officer has

‘probable cause.’” Holder v. Town of Sandown,

(1st Cir. 2009) (citation omitted).

A police officer has probable cause when, at the time of the arrest, the facts and circumstances within the officer's knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

(internal quotation marks and citations omitted).

Chandler does not assert any facts regarding whether the

officers who arrested him lacked probable cause, from which the

court could complete its preliminary review of his Fourth

Amendment false arrest claim. The court, however, cannot rule

out the possibility that he may be able to assert such facts.

Accordingly, the court grants Chandler leave to amend his

complaint within thirty days to state facts sufficient to state

a Fourth Amendment false claim upon which relief might be

granted. Such an amendment must include the name of the

arresting officer for each arrest in his complaint and facts

regarding what happened when he was arrested, which could show

whether the officer acted without probable cause or other legal

authority in arresting plaintiff on October 24, 2018, October

27, 2018, and in January 2019.

4 2. Claims against the Derry Police Department

Plaintiff has named the Derry Police Department as a

defendant. In a § 1983 case, a city or other local governmental

entity cannot be subject to liability all unless the alleged

harm was caused by the implementation of “official municipal

policy.” Lozman v. City of Riviera Beach,

(2018) (citing Monell v. N.Y.C. Dep’t of Soc. Servs.,

(1978)). Therefore, a plaintiff who brings a section

1983 action against a municipality “must identify a municipal

policy or custom that caused the plaintiff’s injury.” Haley v.

City of Boston,

(1st Cir. 2011) (citations and

internal quotation marks omitted). Although the allegations in

the complaint do not demonstrate that the officers who arrested

Chandler were acting pursuant to municipal custom or policy, the

court cannot rule out that Chandler could state a plausible

claim against those defendants upon which relief could be

granted. Accordingly, the court grants Chandler leave to amend

his complaint within thirty days to state facts sufficient to

state a claim against the Derry Police Department. Chandler

must clearly identify: (1) the alleged unconstitutional conduct

of the DPD employees who were involved in his arrests in October

2018 and January 2019; and (2) how the DPD employees’ conduct

was the result of a DPD policy or custom.

5 3. Claim against Police Prosecutor Jordan

Although the caption of complaint names Derry Police

Prosecutor Scott Jordan as a defendant, the body of the

complaint lacks any factual allegations that could plausibly

give rise to a viable claim against Jordan. See Van de Kamp v.

Goldstein,

(2009) (observing that prosecutors

are entitled to absolute immunity from claims arising out of

their “prosecutorial actions that are ‘intimately associated

with the judicial phase of the criminal process.’” (quoting

Imbler v. Pachtman,

(1976))). The court

therefore dismisses this case as to Jordan.

B. Claims Against Neighbors and Fairways Defendants

The bulk of Chandler’s complaint targets various neighbors

for harassing him and accuses the owner and managers of his

apartment complex failing to take action against those tenants

and to properly care for the premises. The complaint makes

references to violations of criminal law, federal law protecting

disabled persons, and state tort law.

1. Criminal law violations

As to accusations that any defendants violated state and

federal criminal law, “[p]rivate citizens lack a judicially

cognizable interest in the prosecution or nonprosecution of

another.” In re Compact Disc Minimum Advertised Price Antitrust

Litig.,

(D. Me. 2006) (quoting Linda

6 R.S. v. Richard D.,

(1973)) (internal

quotation marks and alterations omitted). Because Chandler

cannot state a private cause of action based on the named

defendants' alleged violation of state or federal criminal laws,

those claims are dismissed.

2. Fair Housing Act

The court liberally construes Chandler’s multiple

references to “harassment of a disabled person” as asserting

violations of the Fair Housing Act (“FHA”),

et

seq. 1 The FHA provides, in pertinent part, that it is unlawful

“[t]o discriminate against any person . . . in the provision of

services or facilities in connection with [a] dwelling,” because

of that person’s “handicap.”

(f)(2). The FHA

“contemplates three types of claims for perceived

discrimination: ‘disparate treatment, disparate impact, and

failure to make reasonable accommodations.’” Batista v.

1Although the complaint briefly mentions the Americans with Disabilities Act (“ADA”), see Complaint (Doc. No. 1) at 5, private residences, such as the one at issue here, are not “public accommodations” subject to the ADA. See Kris v. Dusseault Family Revocable Tr., No. 18-cv-566-LM,

, at *5 (D.N.H. Aug. 6, 2018); Krazinski v. Rob Roy Country Club Vill. Ass’n, No. 17-cv-2228,

, at *6 (N.D. Ill. July 19, 2018). To the extent plaintiff intends to state ADA claims against the Fairways defendants, such claims are dismissed for failure to state a claim upon which relief can be granted.

7 Cooperativa de Vivienda Jardines de San Ignacio,

(1st Cir. 2015) (citation omitted).

Construing the complaint liberally, plaintiff asserts that

he is disabled 2 and that the Fairway defendants failed to provide

him with reasonable accommodations. To establish a prima facie

case of failure to accommodate under the FHA, a plaintiff must

demonstrate: 1) that he or she is handicapped, as defined by

(h); 2) that the defendant(s) knew or should

reasonably have known of that handicap; 3) that he or she

requested a particular accommodation that is both reasonable and

necessary to allow plaintiff equal opportunity to use and enjoy

the housing in question; and 4) that the defendants refused to

make the requested accommodation. Astralis Condo. Ass’n v.

Sec’y, U.S. Dep’t of Hous. & Urban Dev.,

(1st

Cir. 2010).

There are no factual allegations in the complaint

suggesting that Chandler requested a reasonable accommodation.

Similarly, there are no allegations that the apartment owners

and managers, to the extent they were aware of plaintiff’s

disability, failed to provide him with any reasonable

accommodation of his disability that he requested. Plaintiff

alleges that a neighbor’s noisy air conditioner was exacerbating

2 Thecomplaint suggests that plaintiff suffers from the effects of a traumatic brain injury. See Complaint (Doc. No 1) at 4.

8 his symptoms and that he complained to management that the noise

constituted harassment. Complaint (Doc. No. 1) at 5. But there

are no allegations that he ever linked the request to his

disability, as opposed to generally asserting “that [he] needed

a quiet apartment in order to protect [his] mental health . . .

.” Colon-Jimenez v. GR Mgmt. Corp.,

(1st Cir.

2007).

Plaintiff also alleges that neighbors stole his personal

property and that the Fairways defendants did not promptly

respond to his complaints about broken kitchen appliances. But

“[t]he Fair Housing Act does not . . . create some general

federal cause of action governing landlord-tenant disputes.”

Palencar v. Rajiski, No. 15-cv-1189,

, at *5

(M.D. Pa. Nov. 9, 2016). A plaintiff cannot “merely describe a

series of housing maintenance concerns in her complaint to state

a claim under the FHA. Instead, the plaintiff ‘must plead some

facts that plausibly link [these] housing maintenance concerns

or dissatisfaction with landlord-tenant proceedings to . . .

disability bias.’”

(quoting Kitchen v. Phipps Houses Grp.

of Cos., 380 F. App’x. 99, 101 (2d Cir. 2010)); see also Lee v.

A & W Pritchard Enters., Inc., No. 3:07–514,

, at

*2 (W.D. Ky. Oct.23, 2009) (holding “if a person without the

plaintiff's disability would be harmed in the same manner as a

9 person with the plaintiff's disability, there is no claim under

the FHA.”).

Here, Chandler’s apartment maintenance complaints are not

linked in any plausible way to intentional discrimination based

on his disability, and the lack of allegations showing that he

requested a reasonable accommodation of his disability that

defendants denied precludes a finding that he has stated a

cognizable FHA claim. Accordingly, his disability

discrimination claims against the Fairways defendants are

dismissed, without prejudice to plaintiff’s ability to file an

amended complaint in this case, within thirty days, in which he

states sufficient factual allegations to state a reasonable

accommodation claim upon which relief can be granted under the

FHA against the Fairways defendants.

3. State Tort Law (Supplemental Jurisdiction)

Throughout his complaint, Chandler alleges that various

neighbors engaged in acts of harassment that he has

characterized as theft, vandalism, slander, libel, infliction of

emotional distress and assault. Given that Chandler has failed

to state a federal claim upon which relief might be granted in

this matter, the court declines to exercise supplemental

jurisdiction over the asserted state law claims. Initially, the

court notes that the exercise of supplemental jurisdiction

requires that that state law claims must be “so related” to the

10 federal claims that they form “part of the same case or

controversy.”

(a); see also Global NAPs, Inc.

v. Verizon New England,

, 86 (1st Cir. 2010) (state

law claims must arise under the same “common nucleus of

operative fact” as plaintiff’s federal claims). Here,

Chandler’s putative federal claims against the Derry defendants

and his federal claims against the Fairway defendants are, at

best, only tangentially related to his state law tort claims.

Moreover, litigation of such claims in this action would require

resolution of evidentiary issues and issues of state law that

would “substantially predominate” over the claims remaining in

this action. See

(c)(2). Accordingly,

plaintiff’s state law tort claims are dismissed, without

prejudice to Chandler’s ability to assert them in state court.

III. Motions to Dismiss and Late Entry of Objection (Doc. Nos. 6, 7)

Because the court has dismissed without prejudice all the

claims asserted against the Fairways defendants pursuant to

(e)(2), their motion to dismiss (Doc. No. 6) is

denied as moot. This denial is without prejudice to defendants’

right to raise any objection to any claim asserted by plaintiff,

based on any proper ground, following the completion of the

court’s preliminary review. Plaintiff’s motion for late entry

11 (Doc. No. 7) of his objection to that motion is also denied as

moot.

IV. Plaintiff’s Motion for Special Prosecutor (Doc. No. 9)

Without citing any legal authority upon which he bases his

request, plaintiff has moved the court to appoint a special

prosecutor to charge and prosecute certain neighbors and

officials for various civil and criminal transgressions. That

motion (Doc. No. 9) is denied.

V. Plaintiff’s Petition for Mandamus (Doc. No. 13) and Motion for Leave to Amend (Doc. No. 12)

Plaintiff seeks a Writ of Mandamus and seeks leave to amend

his complaint to add claims of malicious prosecution and

obstruction of justice. Construed liberally, both the petition

and the proposed amendment seek relief from state court

judgments. The Rooker–Feldman 3 doctrine divests this court of

jurisdiction over “’cases brought by state-court losers

[complaining of injuries caused by state-court judgments

rendered before the district court proceedings commenced and]

inviting district court review and rejection of [the state

court’s] judgments.’” Skinner v. Switzer,

, 532

3See D.C. Ct. App. v. Feldman,

(1983); Rooker v. Fid. Tr. Co.,

(1923).

12 (2011) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,

(2005)). As the Rooker–Feldman doctrine

applies here, Chandler petition for writ of mandamus and motion

for leave to amend his complaint are denied.

VI. Plaintiff’s Petitions for Ex-Parte Injunctive Relief (Doc. Nos. 16, 17)

In both of these petitions, plaintiff complains of action

or inaction by the New Hampshire District, Superior and Supreme

Courts. As with his mandamus petition and proposed amended

complaint, the Rooker–Feldman doctrine applies here, and

requires the court to deny these petitions. 4

VII. Conclusion

For the foregoing reasons, the court orders as follows:

1. Plaintiff’s claims against the Derry Police Department

and Officer Kidd are dismissed, without prejudice to his right

to file an amended complaint against these defendants, within

thirty days of this Order, alleging facts to state claims that

his arrests by DPD officers in October 2018 and January 2019

4 Thecourt held a telephone conference on August 23, 2019, two days after plaintiff filed his petitions for injunctive relief. Plaintiff, counsel for Fairways, and an officer from the county Sheriff’s office participated. The conference resulted in defense counsel agreeing to arrange for plaintiff to retrieve personal property from his apartment. See ECF Dkt. Entry, Aug. 23, 2019.

13 violated his federal rights. The amended complaint must

identify the officers who arrested him on each occasion and must

describe the circumstances of his arrest, upon which he asserts

claims that the arresting officers lacked probable cause of

other authority to arrest him. To state a claim against the

Derry Police Department, Chandler must clearly identify: (a) the

alleged unconstitutional conduct of the DPD employees who

arrested him; and (b) whether the employees’ conduct was the

result of a DPD policy or custom.

2. All claims asserted in the against DPD Prosecutor

Scott Jordan are dismissed with prejudice.

3. All claims asserted against Chartwell Holdings, the

Fairways Apartments and Karen Young are dismissed, without

prejudice to plaintiff’s right to file an amended complaint

against these defendants within thirty days of this Order,

stating additional facts regarding whether plaintiff requested

but was denied a reasonable accommodation of his disability,

upon which he may base a viable Fair Housing Act claim.

4. All claims of criminal law violations are dismissed

with prejudice.

5. The state law tort claims against defendants Jessica

Lori, Dale Thomas, John Delehante, 3rd, John Delehante, 4th, and

Sarah Delehante are dismissed without prejudice to Chandler’s

ability to assert them in a new complaint filed in state court.

14 6. The Fairway defendants’ motion to dismiss (Doc. No. 6)

is denied as moot.

7. Plaintiff’s motion for late entry of an objection to

that motion to dismiss (Doc. No. 7) is also denied as moot.

8. Plaintiff’s motion for appointment of a special

prosecutor (Doc. No. 9) is denied.

9. Plaintiff’s petition for Mandamus (Doc. No. 13) and

Motion for Leave to Amend (Doc. No. 12) are denied.

10. Plaintiff’s petitions for ex-parte injunctive relief

(Doc. Nos. 16 and 17) are denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

September 13, 2019

cc: Scott Chandler, pro se Michael P. Marsille, Esq.

15